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Monday, June 15, 2009

A Tennessee jury was having trouble reaching a verdict in a major medical malpractice case. The doctor, Michael Goodman, was being sued for $12 million. His patient, Kristen Freeman, went into cardiac arrest, following a colonoscopy performed by Dr. Goodman, and suffered permanent, debilitating brain damage.

After two days of deliberations, the jury informed Judge Jacqueline Bolton that they were deadlocked and could not reach a unanimous verdict. After reminding the jurors of the time, expense and emotional energy that had been invested in the case, Judge Bolton proceeded to give the jury a very strong version of an Allen, or dynamite charge:

If a substantial majority of your number are in favor of finding a verdict, those of you who disagree should reconsider whether or not your doubt is a reasonable one, since it appears to make no effective impression upon the minds of the others.

According to affidavits from four jurors, this instruction caused them to rethink whether each juror was responsible for evaluating for herself which verdict would be correct. Rather, they felt as if the judge had suggested that they acquiesce to the majority position if that position had been resistant to arguments from the jurors in the minority.

One juror stated

When I heard the additional instruction again, I felt the court was instructing me to abandon my opinions and agree with the majority so that the case could be resolved by this jury and not have to be retried.

The jury ultimately found Dr. Goodman 51% responsible, which generated a damage award in excess of $6 million.

In light of the Allen charge and the subsequent affidavits, the defense is filing an appeal, alleging, among other things, judicial misconduct.

The unanimity rule employed by Tennessee is a major culprit in this drama. We know that at least two-thirds of the jury was genuinely in favor of finding for the plaintiff in this case. Would it have been more "just" to have found for the defense? That would implement tyranny of the minority. Would a hung jury have been a superior result? Well, if the entire matter has to be retried, the ultimate result would be that one side or the other would prevail. Why not let the first jury take care of that? This jury seemed pretty conscientious. Do we have any faith that the next one would be "superior" in any way?

Ultimately, several jurors in this case voted "insincerely." Four of them voted to hold the defendant liable despite the fact that they didn't really believe it. The 51% responsibility assigned to Dr. Goodman suggests a compromise: the members of the majority coalition agreed to reduce the doctor's responsibility level as low as possible, while still permitting the plaintiff to collect. It seems as if the jurors who wanted to find for the plaintiff didn't vote their true position either.

The courts have long turned a blind eye -- or a knowing wink -- to this kind of behavior by jurors. Judges know that holdouts are coerced into going along with the majority. They know that jurors cut deals to find a compromise they can all live with. The Allen charge is a not-very-subtle endorsement of this kind of "creative" verdict crafting. Most verdicts reflect only one kind of true unanimity: a unanimous willingness to suspend the rules in order to generate a verdict.

So, the legal fiction that is unanimity soldiers on. Meanwhile, the courts choose to ignore the implications for the legitimacy of our civil jury system (I have written extensively about the problems with unanimity in the criminal context elsewhere). Jurors are jaded about the fairness and transparency of our court system. Such an attitude can only be reenforced when the jurors themselves are forced to cut back-room deals to resolve cases. The slavish commitment to unanimity also leaves a trail of anguished jurors who have been forced to check their principles at the door in order to churn out a verdict. Regret of the sort experienced by the jurors in this Tennessee case is not uncommon. I have to think that they would have slept better at night had they been permitted to vote their consciences, even having been out-voted in the end. People don't mind losing, so long as they feel that they have had a chance to speak their piece and that the rules of the game were fair.

As for this particular appeal, I think that the defense has an uphill battle. One obstacle is the prohibition against jurors serving as witnesses with respect to their deliberations. Federal Rule of Evidence 606(b) (and its state counterparts) forbids jurors from testifying about their deliberations, or mental processes associated therewith, after a verdict has been handed down. There is an exception carved into the rule for "extrinsic influences" on the deliberations. This category typically includes unauthorized research by jurors, juror tampering and exposure to publicity about the case. I believe that the jurors can only testify about the effects of the judge's instructions if there is a "substantial risk of a miscarriage of justice" associated with the judge's alleged error.

I do not believe that an appellate judge is likely to be sympathetic to the defense claims here. After all, this kind of jury behavior happens all the time. The only difference here is that the judge chose to articulate what usually remains unsaid.

Friday, June 12, 2009

It was reported yesterday in the Modesto Bee that two-thirds of those surveyed already believed that Columbus Allen Jr. is guilty of killing California Highway Patrol Officer Earl Scott. Allen's defense team is attempting to use the survey in support of a change of venue motion, but the judge seems unlikely to grant the request. It is instructive to read the stream of vitriol posted by readers commenting on the article.

My god, they should of tried him the moment they arrested him... OFF TO THE GALLOWS BOY!

The evidence is clear. He killed Earl Scott. He is guilty, nothing else left to discuss, time for him to suffer and die a slow slow death.

This poor excuse for a life form was stupid enough to show up later with gunshot residue on his hands and arms. i am willing to bet he wasn't at the gun range practicing. guilty. fry him. this society is already paying for enough criminals and cannot afford them.

Of course everybody knows he's F*%&ing guilty! He murdered a CHP officer on 99 when everyone was commuting. I still remember that morning driving past that grim scene.Why has this trial been put-off for so long? Get it the hell over with and sentence him!

Of course, this is a murder case, with lots of pretrial publicity. We should not be surprised to see strong public attitudes. In addition, the defense team has conducted the survey to achieve a very specific purpose: get the trial out of Stanislaus County. That said, a community attitude survey can be extremely helpful for civil litigation, as well.

Imagine you are defending a hospital in a medical malpractice case. Wouldn't it be useful to know whether the hospital is held in high esteem, as compared to others in the community? Are the people in this jurisdiction particularly dissatisfied with the quality of healthcare they receive? Is there an ongoing shortage of primary care physicians, causing patients to wait for appointments? Has the "torts crisis" argument taken hold in this community? These are all questions that can be answered with a community attitude survey. A survey of hundreds or thousands of people can be conducted for less money than a one-day focus group study with only a handful of subjects.

The judge in your case has authorized the use of a supplemental juror questionnaire, but she has made it clear that it is NOT going to be 75 pages long. She orders you to get your act together and submit no more than a dozen case-specific questions. How do you decide which questions to use? (After all, your trial consultant has written more than 30 truly outstanding questions for you) Commission a survey with your top candidate questions. This provides you an opportunity to analyze the responses of jury-eligible members of the community. You will undoubtedly discover that some questions just don't generate any useful range of answers. Others produce responses that don't seem to correlate with attitudes related to the case. The key is to find those questions that effectively distinguish between people who seem generally sympathetic to your case and those who do not. Now you can submit your short list of questions to the judge with confidence that they will produce results in jury selection.

Surveys have several advantages over other methods of pretrial research.

First, a survey typically involves many more subjects. This means more data and more confidence in the results.

Second, a survey can be conducted in the background while the trial team is busy taking care of other matters. There is no need to find a date on which the entire trial team, witnesses, parties and trial consultants can all be in the same place at the same time.

Third, since a survey is conducted without direct involvement of the trial team, subjects can be recruited for subsequent interviews or focus group study without the "contamination of advocacy." So, a survey can be a preliminary research step. leading to more targeted efforts.

Fourth, a survey can be tweaked as it is being conducted. Obviously, the analysis of any particular set of responses is limited by the number of subjects who were asked the same question. There is not harm, however, in figuring out halfway through that you really should have included a question about home foreclosures. The survey research company can include it for all subjects from that point forward. It is much harder to tweak a focus group or mock jury study in the middle.

While it is unlikely that an entire community will have decided on a verdict for your case in advance (although it could happen), a survey can help you identify pervasive attitudes among the people who will be comprising your jury. These attitudes will shape the lens through which jurors will be viewing your case. To stretch the metaphor a bit, you can't grind the right set of corrective lenses (your case presentation) until you know what prescription is needed.

Tuesday, June 09, 2009

I recently returned from Atlanta, where I was attending the annual conference of the American Society of Trial Consultants.

A lot of informal discussion, at the breaks, in the halls and at the bar, centered around the effects of the economic downturn on juries. What were they doing differently now?

Beth Foley chaired a session on the effect of the economy on damage awards, but the discussion freely flowed into behavioral areas other than damages. No-one really had any data, per se, unless you think of data simply as the plural of "anecdote." That said, there were some interesting conjectures offered, some of them supported by personal experiences with trial juries or mock jurors.

Welcome to jury duty, Mr. Executive Vice President for South Asian markets.Several attorneys and consultants noted that massive layoffs of white-collar workers has resulted in executives being available for both pretrial research and actual jury duty. This is generally seen as beneficial for corporate defendants because these professionals will understand the decision-making structure of business better than typical jurors. They won't be so quick to adopt the "zero-risk fallacy" or assume that all corporate mistakes are the result of negligent conduct.

Let's not break the bank here!Tara Trask commented that she had seen a definite upswing in arguments by research subjects pertaining to driving companies out of business. People have watched seemingly indestructible multinational conglomerates go under in the past year. This has increased sensitivity to the vulnerability of all companies. Jurors may think twice about an award large enough to bankrupt a company that provides jobs in their own community. Certainly, such arguments can no longer be dismissed out-of-hand.

I'm so mad, I could just spit!There continues to be a lot of pent-up hostility towards big companies and firms in the financial sector. We know that jurors give vent to their desire to punish corporate defendants when calculating compensatory damages, despite instructions to only consider such factors if punitive damages are warranted. In the present environment, I would expect the desire to punish to infiltrate these values even more.

Where's the check with my name on it?There has been a lot of discussion lately about the value of identifying jurors with a "just world" attitude towards the world. There are several versions of this perspective. The more people who feel themselves to have been "mistreated" by the world, perhaps because they have been laid off or have lost a house of foreclosure, the more potential jurors there are who will be reluctant to give a "hand-out" to someone else. The thinking is along the lines of, "Hey, times are tough. We've all suffered. You don't see anyone giving me free money, do you? Why should I bail out this guy?" I would think that any plaintiffs attorney would do well to probe for such attitudes during voir dire.

I wish I could tell you, kind readers, that we have reams of definitive data, pinpointing exactly how the current economic climate is affecting verdicts and damage awards. Alas, all we really have are some basic trends, a few anecdotes and thoughtful speculation from some pretty intelligent and experienced jury experts. I am afraid it will have to do for now.

For those of you who might be new to The Jury Box Blog, you can read a couple of pieces I have previously published on my own perspective on the connections between economic climate and damage awards here and here.

Saturday, June 06, 2009

As promised, I write today about the second workshop conducted by David Matsumoto at the American Society of Trial Consulting Conference. While the Thursday afternoon session on reading facial expressions (and "microexpressions") lasted three hours (please see previous post), the session on lie detection was only one hour long. So, he had a lot to cover in a short span of time. To his credit, David is an excellent public speaker. He's funny, articulate, clear and responsive to questions.

Most of the session was devoted to understanding, identifying and recognizing emotional "hotspots." A hotspot occurs when subconscious, emotional cognition runs contrary to conscious, logical cognition. Such occurrences put a lot of pressure on one's brain, making it difficult to focus and control. Imperfect control results in emotional "leakage." A person who is trained to detect microexpressions can catch such leakage as it happens.

For example, a candidate can say something nice about his opponent, but he crinkles his nose for just a split second. The expression of disgust has leaked out. The beauty pageant runner-up allows a one-sided look of contempt to cross her face for a millisecond before she successfully plasters a big, fake smile back on her face.

There are gestural cues to look for, as well. For instance, David showed the video of Alex Rodriguez answering a question from Katy Couric about the use of performance-enhancing drugs. He answers "no" very definitively -- while nodding his head up and down at the same time.

David was very careful to point out that a hotspot, with associated emotional leakage, is only a sign that there is some disconnect between the speaker's words and his emotions. Lying is only one possible explanation for such a disconnect. Leakage can also be the result of cognitive dissonance, ambivalence or extreme uncertainty.

So, for us consultants, the key is to identify hotspots. That suggests that lying might be taking place. Additional investigation and/or interrogation is necessary to tease out what is causing the emotional disconnect.

So, what should I do now with my cursory training and heightened awareness of emotional leakage and hotspots? Well, I'm not quite ready to market myself as an emotional cue expert, who can help lawyers identify lying jurors or witnesses with precision. That said, I will certainly look for microexpressions when reviewing footage from focus group sessions. I will keep an eye out for microexpressions from a witness I am helping to prepare. An obvious hotspot can help me identify a line of inquiry that might be tricky for the witness.

I am curious to see how useful this heightened sensitivity to facial expressions might be moving forward. Please feel free to contact me if you'd like to chat about my experience with this program.

On Monday, I'll file a new post with some additional observations, lessons and stories from the conference. Tomorrow, it's golf at East Lake! Fore!!!!!

Friday, June 05, 2009

I am currently in Atlanta, attending the annual conference of the American Society of Trial Consultants. Yesterday afternoon, I attended a very interesting presentation by David Matsumoto, who works for the Ekman Group in San Francisco. In case you don't recognize the name, Paul Ekman is the expert on lie-detection on whose work is based the television series, "Lie to Me."

David was conducting a training session on recognizing emotional state from facial expressions. I must admit up front that I was a bit skeptical of these methods. I am now convinced that they are really onto something. It takes a while to get to the punch line, so please bare with me.

It turns out that there are seven basic emotions that can be accurately characterized by unique facial expressions.

David showed us a number of examples and trained us how to look for the signs of each emotion. He spent extra time on distinguishing fear from surprise, and sadness from disgust. We all got pretty good at identifying emotions properly from images.

David then discussed how cognition and emotion often battle for control of the face. A person is consciously attempting to convey one emotion, or stay neutral, while emotionally, they are pulled towards a different expression. Very often, the true emotional state "leaks out" through "microexpressions." These microexpressions can last for only a fraction of a second, so they can be difficult to catch and properly identify.

David showed some examples from press conferences and witness testimony. He could slow down the video and show us exactly when a lip curled, an eyebrow drooped or a nose wrinkled.

The next step was to get us accustomed to detecting changes in facial expression in, literally, a blink of an eye. I really thought I was missing it. I felt like I was guessing all the time. I decided to focus on just the bridge of the nose, or try a "soft focus" technique. His computer program would change the face and then return it to normal so fast that sometimes I missed it completely. "OK," I thought, "this is hopeless unless you have a high speed camera and enough time to analyze the footage. What the heck am I going to do with this?" But I did seem to be getting a bit better.

Finally, after a little more than one hour of training, he showed us a series of 28 faces. He would put up a face in a neutral state and then hit a button, which would change the face to an emotive expression for less than half a second. David told us that this is the top speed at which his team trains people (like police officers, military personnel, HR professionals). As each face appeared, then changed for only an instant, we had to write down which of the seven emotions we thought we were detecting. This was our test.

Certain emotions were pretty easy to detect. For instance, since contempt only involves half the face, it was fairly straightforward to notice that the expression only changed on one side. On a lot of them, I really felt like I was guessing. But, as it turned out, I wasn't. Astonishingly (especially to myself), I correctly identified 23 of 28 expressions (82% correct). This was at the high end of the distribution for the 100 or so people in the room. There were plenty of people hanging around 50%. Still, I was pretty impressed. This could really be done.

This morning, I attended a second session conducted by David Matsumoto, this one specifically focusing on lie detection. The key is to identify situations where there is a disconnect between verbal message and emotional "leakage." I'll post a blog entry describing that session tomorrow. Stay tuned!

Tuesday, June 02, 2009

I published the following as a letter to the editor in the June 1 edition of Massachusetts Lawyers Weekly. The original article to which I make reference is well worth reading.

Trial consultant: beware of current juror reasoning

Published: June 1, 2009

To the editor:

Jocelyn Cinquino published a very interesting piece ("Impact of the economic downturn on juror reasoning," May 11) on the current economic climate's likely impact on jury decision-making. It should come as no surprise that this topic has been hot in the trial consulting community. There has been a lot of chatter about this on the American Society of Trial Consultants listserv and several sessions will be devoted to the topic at our June conference.

Cinquino's remarks largely mirror those I have heard from other consultants, and I think she has given a nice survey of current thinking on the topic. That said, there are a couple of specific points absent from Cinquino's piece that deserve some mention.While predicting damage awards is a very tricky proposition, largely because jurors' monetary calculations tend to be all over the map, we do know something about the strategies that jurors tend to employ when thinking about damage awards.The most common technique is known as the "anchor and adjust" strategy: A juror latches onto some tangible number that seems relevant to the damages calculation (or just in the right ballpark) and then adjusts up or down, depending on the persuasiveness of various arguments. The most common and influential anchor is the plaintiff's ad damnum. Other notable anchors are statutory damage caps and awards from famous cases.

In a state such as Massachusetts, without ad damnum requests, jurors look elsewhere (and seemingly everywhere) for anchors. Commonly used anchors include housing prices, annual salaries, pension benefits and school tuitions. It is important to realize that jurors use their own subjective estimates of these values, e.g. "My aunt Martha just sold her house in Methuen for $175K."In a depressed economy, jurors' estimates of these anchors understandably will be lower than those associated with economic prosperity. I believe that this "sunken anchor" effect is probably the most important one driving down damage awards.

The second point I'd like to make concerns securities litigation and other suits related to the financial industry. I recently worked on a case involving the aftermath of a Ponzi scheme. We ran pre-trial research on the case in the form of a multi-panel, full-day focus group study. We learned many interesting things about the public's perception of the financial sector.Most were fairly predictable and intuitive, such as suspicion of banks or a call for more regulation. One moderately surprising result was the inability (or lack of inclination) of people to differentiate between risky investment strategies and outright theft. Our subjects perceived the actions of hedge fund managers, sub-prime mortgage lenders and investment advisors as being simply different forms of fraud.

While they were happy to crucify the person in our case who had stolen money from his clients, they considered Lehman Brothers and Citibank also to have "stolen" billions of dollars. Perhaps due to lack of sophistication about the financial services industry, most people think of the sub-prime mortgage mess as a giant Ponzi scheme. Be prepared to run into resistance if you plan to defend a bank or investment house on the grounds that what they did was "completely legal."

The Jury Box Blog

This is the blog of Edward P. Schwartz, a jury consultant located in New York and Massachusetts. I will post occasional comments on interesting jury trials, legislative reform efforts and jury-related research. For more detailed information about jury decision-making, see our website. You can contact me there about help for your case, too.